Executive privilege, in its definition, provides protection over communications with the president himself, according to the judge. The letter sent by Eric Holder requesting executive privilege does not detail a discussion with the president, but Judge Napolitano said, “The implication is there.”

“If the attorney general sat down and discussed it with the president, he probably doesn’t want the Congress and the public to know that,” Napolitano said.

Napolitano also said that executive privilege only pertains to “military, diplomatic and sensitive national security matters.”

“Now, was fighting the drug gangs at the border a sensitive national security matter? And, if so was the President of the United States of America personally involved in making decisions as to how to conduct that fight? If that’s the case, this has reached a different level and we now know why the attorney general has ferociously defended these documents,” Napolitano said.

Napolitano concluded, “If the president was not personally involved, executive privilege doesn’t apply. If the president was personally involved, and they want to argue that fighting drug gangs at the border is a matter of sensitive national security, then they at least have an argument for executive privilege but that would be at odds with what Attorney General Holder has already testified to under oath.”

12p ET UPDATE: Chris Wallace just reported that executive privilege does not necessarily mean that the president is involved, but could mean that White House aides were involved. Read more here.

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